Odds against Blagojevich as he appeals conviction

Published: Wednesday, July 17, 2013 5:30 a.m. CDT

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CHICAGO – Rod Blagojevich faces long odds with the appeal of his federal corruption conviction, just as did his predecessor as Illinois governor, George Ryan, who repeatedly tried and failed to reverse his conviction on appeal.

A nearly 100-page appeal filed before midnight Monday with the 7th U.S. Circuit Court of Appeals asks the higher court toss to Blagojevich’s convictions or, at least, to reduce his stiff, 14-year prison sentence.

The appeal, which comes two years after Blagojevich’s decisive retrial and 16 months after he entered a federal prison in Colorado, cites a litany of alleged errors by trial Judge James Zagel. And it says Zagel miscalculated the Chicago Democrat’s sentence, adding years he didn’t deserve.

The filing also argues that Blagojevich’s most shocking crime in the eyes of most observers – that he sought to profit from his power to appoint someone to fill President Barack Obama’s vacated Senate seat – was no crime at all but run-of-the-mill political wheeling and dealing.

After two years preparing the appeal in the highly complex case that generated 12,000 court transcripts alone, the process now could move relatively fast.

Federal prosecutors have 30 days to file a response to the appeal, and oral arguments before a three-judge panel could be scheduled soon thereafter. A ruling on the appeal could happen within six months.

Blagojevich, 56, is inmate No. 40892-424 at a prison outside Denver, where he bides his time teaching history and learning to play the guitar, one of his attorneys, Lauren Kaeseberg, said Tuesday.

“He is hopeful he will prevail and that he will be able to help raise his two children again in his home with [his wife] Patti,” said Kaeseberg, who recently spoke with Blagojevich by phone.

Appellate judges at the 7th Circuit in Chicago rarely overturn convictions unless a lower court’s errors are egregious, said Gal Pissetzky, a Chicago defense attorney not connected to Blagojevich’s case. Pissetzky said Blagojevich’s appeal has a “very small” chance of success.

Blagojevich was convicted on 18 counts over two trials. Since he was sentenced in late 2011, many observers said his best hope on appeal wasn’t that a higher court would overturn his convictions but, perhaps, to shave a few years off his lengthy, 14-year sentence.

The appeal filed Monday hits that issue hard.

It says Zagel wrongly concluded at sentencing that Blagojevich qualified for years more in prison as a result of $1.5 million in campaign contributions supporters of then-Congressman Jesse Jackson Jr. allegedly offered to the governor’s campaign if Blagojevich named Jackson to Obama’s seat.

Zagel chose to consider the alleged exchange as an aggravating factor for sentencing, the appeal says, even though evidence about the offer was “vague and speculative,” and even though there was no proof any such offer was “accepted, negotiated or even entertained by Blagojevich.”

Neither Jackson – who has since resigned his House seat and pleaded guilty to unrelated charges of misusing campaign funds – nor the supporters allegedly involved were ever indicted in the Blagojevich case.

The appeal also says Zagel allowed a juror who allegedly expressed bias against Blagojevich to remain on the panel despite defense attorneys’ objections. The appeal only referred to the panelist as Juror No. 174, saying he said of Blagojevich during jury selection, “I just figured him, possibly, to be guilty.”

The appeal devotes many pages to the most serious crime for which Blagojevich was convicted — that he effectively tried to sell Obama’s old Senate seat to the highest bidder.

At trial, prosecutors played secret wiretaps of a foul-mouthed Blagojevich eager to earn big money. In one recording, he is heard saying about the seat: “I’ve got this thing, and it’s f------ golden. And I’m just not giving it up for f------ nothing.”

The appeal argues Blagojevich was engaging in standard politics when he floated the idea of securing a U.S. Cabinet post or ambassadorship for himself if he appointed Obama confidant Valerie Jarrett to the Senate seat. Neither Obama nor Jarrett have ever been accused of any wrongdoing in the case.

“The record shows that Blagojevich’s proposed exchange was an arm’s length political deal, described by Blagojevich as a political ‘horse trade,’” the appeal says. It wasn’t criminal “because the political deal proposed by Blagojevich was a proper and common exchange under our democratic system of government.”

Kaeseberg, Blagojevich’s attorney, said Tuesday during an interview that the allegations against Blagojevich were distinct from allegations against other politicians accused of accepted cash under the table or some other clear benefit, because the crimes he is accused of “all took place in the sphere of the political world.”

That, she argued, could make the higher court’s ruling on Blagojevich’s appeal precedent-setting.

“The line is unclear (in U.S. law) as to what kind of political action is legal and criminal,” she said. “There’s an opportunity here to clarify just where they line is.”